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Respondent’s. The Applicant stated that the purpose for seeking the orders was to enable him dispose of one of the properties and pay the medical bills he incurred after the hospital admission. He added that the 1st to 3rd Respondents were ordered to pay Kshs. 30,000/= for the demarcation exercise but had not paid to date. 3. The Applicant further contended that despite the Principal Magistrates Court at Siakago adopting the award of the Gachoka Land Disputes Tribunal as an order on 27/7/2011, the 1st to 3rd had frustrated every efiort to efiect the court order since 2011. He added that several applications were made to set aside or review the ruling unsuccessfully. He moved the Principal Magistrate’s Court at Siakago for directions on how to implement the orders of the tribunal but the orders issued by the court were not been complied with by the Respondents. He filed another application and the magistrates court issued orders on 14/12/2023 directing the 4th Respondent together with the County Surveyor to efiect the orders of the tribunal. The orders were equally not complied with. 4. The Applicant averred that on the date agreed upon for boundary identification, the 4th Respondent declined to proceed on the premise that the Attorney General had directed the ofice not to undertake the exercise. He averred that the 4th Respondent’s inactions were aimed at embarrassing the court process and to deny him an opportunity to enjoy the fruits of litigation. He pointed out that this was an old matter and the court should make a final pronouncement on it as he is old and needs to put his house in order. The Applicant swore the afidavit in support of the application and annexed a copy of the order issued on 27/7/2011 together with copies of orders issued in the magistrates’ court, the application and the ruling of 14/12/2023. 5. The 1st to 3rd Respondents raised a preliminary objection to the application on ground that by dint of Sections 25, 28, 29(a), 30, 34 and 38 of the Civil Procedure Act, this court had no jurisdiction be it supervisory or otherwise, to enforce or execute the court order dated 14/12/2023 issued in ELC LDT Case no. 18 of 2011 at Siakago and that the invitation to do so would amount to jurisdictional usurpation. It was urged that only the trial court could execute its own decrees or orders. The other ground was that the trial court is empowered jurisdictionally under Section 38 of the Civil Procedure Act to execute the court order dated 14/12/2023 as against the 4th Respondent and to that extent, the Applicant’s complaint was wholly incompetent in law. They urged that the application should be struck out with costs. 6. The 4th Respondents filed grounds of opposition to the application. The grounds were that the application is premature and an afterthought; the it was vexatious, misplaced and an abuse of the court process; the Applicant had not exhausted the available remedies before seeking orders of judicial review; the Applicant had not demonstrated that he tried to solve the dispute with the 4th Respondent before filing the judicial review proceedings; the Applicant had not demonstrated that he moved the Siakago Principal Magistrate Court for orders of contempt of the orders made on 14/12/2023 against the 4th Respondent; and lastly, that orders of judicial review are discretionary and can be denied. 7. The court directed parties to file submissions which it has considered. The Applicant reiterated the grounds of his application and submitted that it was was not true that these proceedings were premature since the Applicant had not engaged the Respondent as the 4th Respondent failed and refused to undertake the boundary demarcation exercise even after the Applicant paid all the statutory fees and disbursements required of him. 8. He averred that those actions amounted to contempt of court and it was in the interest of justice for such actions not to be taken lightly. The Applicant relied on Section 5(1) of the Judicature Act which gives the High Court and the Court of Appeal the same powers to punish for contempt of court as those exercised by the High Court of Justice in England which power extends to upholding the https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5880/eng@2025-06-05 2

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authority and dignity of subordinate courts. He also relied on Section 43 of the Interpretation and General Provisions Act which stipulates that statutory duties are to be performed by the current ofice holders. He also cited authorities in support of that position. 9. The Applicant emphasized that over 14 years had elapsed since the Tribunal gave the award, and that despite multiple applications being filed to enforce the orders, the 4th Respondent had consistently failed to act. The Applicant invoked the maxim that equity regards as done that which ought to be done. He submitted that the persistent non-compliance was indicative of a disregard for the terms of the order and that the 4th Respondent’s conduct was deliberate and warranted enforcement through the appropriate legal remedy. The Applicant urged the court to allow the application. 10. The 1st to 3rd Respondents submitted that the appropriate legal remedy referred to by the Applicant was provided by Section 38 of the Civil Procedure Act read with Section 30 of the same Act which provides that a decree may be executed by the court which passed it or by the court to which it is sent for execution. They submitted that even in cases where a decree is passed by a court in the exercise of its appellate jurisdiction, it can only be executed by the court of first instance as prescribed by Section 29(a) of the Civil Procedure Act. It was their submission that this court lacked jurisdiction to execute the orders of the lower court and that it was only the lower court that issued the orders dated 14/12/2023 with jurisdiction to enforce those orders. They urged the court to strike out the application. 11. The 4th Respondents submitted that under Article 159(2)(c) of the constitution, courts must promote alternative dispute resolution methods before resorting to litigation. It was urged that the Applicant had failed to explore alternative dispute resolution mechanisms with the 4th Respondent as required by law. Further, that the Applicant had not exhausted available remedies as stipulated under Order 53 of the civil procedure rules which enjoins the exhaustion of alternative remedies before judicial review can be sought. It was contended that the Applicant ought to have moved the lower court to enforce its orders or commenced contempt proceedings against the 4th Respondent for non-compliance in line with Section 38 of the Civil Procedure Act and section 5 of the Judicature Act. 12. Additionally, that judicial review is a discretionary remedy and the Applicant must demonstrate that he has a prima facie case warranting the court’s intervention. It was also urged that Article 47(1) of the Constitution guarantees the right to fair administrative action but it does not grant an automatic right to judicial review. The 4th Respondent argued that the Applicant had not established that its actions amounted to abuse of power nor that the Applicant’s rights have been violated to warrant this courts intervention. They urged that the application should be dismissed. 13. The issue for determination is whether this court should issue an order of mandamus compelling the 4th Respondent to efiect the orders issued on 14/12/2023 in LDT No. 18 of 2011. The Respondents contended that this court lacked jurisdiction to enforce orders issued by a subordinate court and cited Sections 29, 30 and 38 of the Civil Procedure Act. It is indeed settled that the court which issued a decree, or one to which it has been transferred, is seized of jurisdiction to execute such decree. The present application does not seek execution in the strict sense. Rather, the Applicant seeks to compel the 4th Respondent, a public oficer, to discharge a statutory duty arising from a lawful and valid court order. The relief sought is therefore not execution, but performance of a public obligation imposed by law. 14. The Applicant has demonstrated that efiorts to obtain compliance with the orders of the tribunal through the trial court were unsuccessful, and that the 4th Respondent failed or refused to act on the court order dated 14/12/2023, citing instructions which were purportedly given by the Attorney General not to act. It is noteworthy that the Attorney General represented the 4th Respondent in these proceedings but did not ofier any credible explanation or justification for the continued noncompliance with lawful court orders. The Applicant has demonstrated that he exhausted alternative https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5880/eng@2025-06-05 3

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remedies, and this court is satisfied that any further pursuit of contempt proceedings in the trial court will not serve any useful purpose. 15. The 4th Respondent is under a statutory and administrative duty to implement the orders issued by the Siakago Principal Magistrate’s Court in LDT Case No. 18 of 2011. 16. An order of mandamus is issued to compel the 4th Respondent, the Land Registrar Mbeere South to comply with and implement the orders issued on 14/12/2023 in Siakago LDT Case No. 18 of 2011. In particular, the 4th Respondent is to visit land parcel numbers Mbeti/Gachururi/1261, 1267, 1268, 1269 and 1275 and mark the correct positions of the boundaries between those parcels of land on the ground. 17. The Applicant will have the costs of the application to be borne by the 4th Respondent. DELIVERED VIRTUALLY AT EMBU THIS 5TH DAY OF JUNE 2025. K. BOR JUDGE In the presence of: No appearance for the Applicant Mr. Njage Wanjeru for the 1st to 3rd Respondents Mr. Ian Kiplimo holding brief for Justin Kiongo for the 4th Respondent Diana Kemboi- Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5880/eng@2025-06-05 4

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